Cipri v. Bellingham Frozen Foods, Inc., Docket No. 174811

• Court: Court of Appeal of Michigan (US)
• Writing for the Court: Before DOCTOROFF; DOCTOROFF
• Citation: 539 N.W.2d 526,213 Mich.App. 32
• Parties: Richard J. CIPRI, Plaintiff-Appellant, v. BELLINGHAM FROZEN FOODS, INC., a Washington corporation, Decaturland Elevator Co., Inc., a Michigan corporation and/or proprietorship, Decaturland Investments, Inc., a Michigan corporation, DVD Enterprises, a Michigan joint venture, jointly and severally, Bernard C. Sherburn Jr., an individual, Valleyview Farms, Inc., a Michigan corporation, Vegco, Inc., a Michigan corporation, Southern Michigan Beef Company, a Michigan corporation, and Iris Swift, an individual, Defendants-Appellees.
• Docket Number: Docket No. 174811
• Decision Date: 22 August 1995

Page 526

539 N.W.2d 526 213 Mich.App. 32 Richard J. CIPRI, Plaintiff-Appellant,
v.
BELLINGHAM FROZEN FOODS, INC., a Washington corporation,
Decaturland Elevator Co., Inc., a Michigan corporation
and/or proprietorship, Decaturland Investments, Inc., a
Michigan corporation, DVD Enterprises, a Michigan joint
venture, jointly and severally, Bernard C. Sherburn Jr., an
individual, Valleyview Farms, Inc., a Michigan corporation,
Vegco, Inc., a Michigan corporation, Southern Michigan Beef
Company, a Michigan corporation, and Iris Swift, an
individual, Defendants-Appellees. Docket No. 174811. Court of Appeals of Michigan. Submitted July 12, 1995, at Grand Rapids.
Decided Aug. 22, 1995, at 9:20 a.m.
Released for Publication Nov. 17, 1995.

Page 527

[213 Mich.App. 33] Gemrich, Moser, Bowser & Lohrmann by Susan M. Fall, Kalamazoo, for the plaintiff.

Howard & Howard by Gary A. Peters, Steven C. Kohl, and Carolyn M. Claerhout, Bloomfield Hills, for Bellingham Frozen Foods, Inc.

[213 Mich.App. 34] Before DOCTOROFF, C.J., and NEFF and CONNOR, JJ.

DOCTOROFF, Chief Judge.

The trial court granted defendants' motion for partial summary disposition pursuant to MCR 2.116(C)(8), dismissing plaintiff's claim under the Environmental Response Act (ERA), M.C.L. § 299.601 et seq.; M.S.A. § 13.32(1) et seq. We granted leave to appeal. We now reverse.

I

Plaintiff owns a twenty-five-acre private lake called Baker Lake. This lake is on plaintiff's property and is fed by a spring and several small streams. Defendant Bellingham Frozen Foods (hereinafter defendant) processes vegetable products, including sweet corn. Defendant contracted with defendant Sherburn to remove some sweet corn husks to be used as silage for cattle feed. Defendant Sherburn's feed bunker was located near a natural spring that drained into streams flowing to Baker Lake. Plaintiff alleged that defendant Sherburn received 22,250 tons of sweet corn husks from defendant during 1990 and 1991, which was too large an amount to fit in defendant Sherburn's feed bunker. Plaintiff further alleged

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that these fermenting sweet corn husks produced 1.335 million gallons of leachate, ¹ which flowed into Baker Lake and killed all of the lake's aquatic life.

Plaintiff filed a seven-count complaint. The first count alleged violations of the ERA, the Solid Waste Management Act, M.C.L. § 299.401 et seq.; M.S.A. § 13.29(1) et seq., the water resources commission[213 Mich.App. 35] act, M.C.L. § 323.1 et seq.; M.S.A. § 3.521 et seq., and the liquid industrial waste disposal act, M.C.L. § 323.271 et seq.; M.S.A. § 3.533(101) et seq. The remaining six counts alleged violation of the Environmental Protection Act, M.C.L. § 691.1201 et seq.; M.S.A. § 14.528(201) et seq., trespass, negligence, and nuisance.

Defendant filed a motion for partial summary disposition pursuant to MCR 2.116(C)(8). Defendant argued that the trial court should dismiss plaintiff's first count. Defendant claimed that it was not liable under the ERA because it only processed the sweet corn husks but did not cause them to become injurious to the public health. Defendant also argued that plaintiff possessed no private right of action under the Solid Waste Management Act, the water resources commission act, or the liquid industrial waste disposal act.

The trial court granted defendant's motion for partial summary disposition. Furthermore, the trial court stated that plaintiff could not bring an action for personal injuries based on a violation of the Solid Waste Management Act, the water resources commission act, or the liquid industrial waste disposal act. Plaintiff appeals the trial court's grant of summary disposition only on the ERA claim.

II

First, we must determine whether to apply retroactively the definition of hazardous substance contained in the recently amended version of the ERA or to apply the definition found in the statute on the date plaintiff filed suit. The ERA was initially enacted in 1982. A hazardous substance was defined in subsection p of § 3, M.C.L. § 299.603(p); M.S.A. § 13.32(3)(p), as one or more of the following:

[213 Mich.App. 36] (i) A chemical or other material which is or may become injurious to the public health, safety, or welfare or to the environment.

(ii) "Hazardous substance" as defined in the comprehensive environmental response, compensation, and liability act of 1980, Public Law 95-510, 94 Stat 2767.

(iii) "Hazardous waste" as defined in the comprehensive waste management act, Act No. 64 of the Public Acts of 1979, being sections 299.501 to 299.551 of the Michigan Compiled Laws.

(iv) "Petroleum" as described in section 4(5)(b) of the leaking underground storage tank act, Act No. 478 of the Public Acts of 1988, being section 299.834 of the Michigan Compiled Laws.

In 1995, the Legislature amended the ERA and recodified it within the Natural Resources and Environmental Protection Act (NREPA), 1994 P.A. 451, M.C.L. § 324.101 et seq.; M.S.A. § 13A.101 et seq. The Legislature then amended the definition of hazardous substance contained in the NREPA, effective June 2, 1995. The amendment retained the basic definitions in subsections ii, iii, and iv. However, the definition of a hazardous substance in subsection i was changed:

Any substance that the department demonstrated, on a case by case basis, poses an unacceptable risk to the public health, safety, or welfare, or the environment, considering the fate of the material, dose-response, toxicity, or adverse impact on natural resources. [M.C.L. § 324.20101(q)(i); M.S.A. § 13A.20101(q)(i).]

Plaintiff maintains that, because he filed suit before the enactment of the amendments of the ERA, we should apply the original statute. Defendant argues that, because this amendment was a mere clarification of the earlier statute, it should [213 Mich.App. 37] have retroactive effect. Generally, statutes are applied prospectively unless the Legislature

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has expressly or impliedly indicated its intent to give retroactive effect or unless the statutes are remedial or procedural in nature. Boyne City v. Crain, 179 Mich.App. 738, 745, 446 N.W.2d 348 (1989). ² To determine whether the amendment of the definition of hazardous substance involved more than a procedural change, we must consider the language of both the earlier definition and the current amendment.

The original statute defined hazardous substance as a chemical or any other material that is or may become injurious to the environment. M.C.L. § 299.603(p)(i); M.S.A. § 13.32(3)(p)(i). The use of "other material" and "may become" indicate that the Legislature intended "hazardous substance" to apply to a broad variety of substances. Our Court has quoted with approval the statement in B.R. MacKay & Sons, Inc. v. United States, 633 F.Supp. 1290, 1294 (D.Utah, 1986) concerning the federal Comprehensive...